An emotional Attorney General Jack Conway announced he will not appeal federal judge's ruling that requires Kentucky to recognize same-sex marriages from other states. Photo by Jack Brammer | Staff
Herald-Leader

Gov. Steve Beshear delivered his State of the Commonwealth Address on Jan. 7 at the Kentucky State Capitol in Frankfort.
Herald-Leader

FRANKFORT — Democratic Gov. Steve Beshear said Tuesday that he will appeal a federal judge's order requiring Kentucky to recognize same-sex marriages that were performed elsewhere.

The allowable definition of marriage "will be and should be ultimately decided by the U.S. Supreme Court in order to bring finality and certainty to this matter," Beshear said in a statement. "The people of this country need to know what the rules will be going forward. Kentucky should be a part of this process."

Beshear said he will ask U.S. District Judge John G. Heyburn II in Louisville for an indefinite "stay," or delay, while Kentucky takes the case to the U.S. 6th Circuit Court of Appeals in Cincinnati.

Heyburn last week issued a final order striking down portions of a 1998 state law and a 2004 state constitutional amendment defining marriage as between one man and one woman, and prohibiting the recognition of same-sex marriages from outside Kentucky.

The Fourteenth Amendment to the U.S. Constitution guarantees equal protection of the law from state to state, so Kentucky cannot deny people their fundamental rights, such as the right to marry, Heyburn wrote. But he put his order on hold until March 20 to give state officials time to respond.

Beshear will pay private lawyers $125 an hour to pursue Kentucky's appeal because a tearful Attorney General Jack Conway, also a Democrat, announced minutes earlier that he will not challenge the judge's order. The attorney general's office had been representing the state in the case.

Kentucky's same-sex marriage ban discriminates against a minority and is doomed to fail, so the state shouldn't squander its limited resources trying to save it, Conway said.

"From a constitutional perspective, Judge Heyburn got it right, and in light of other recent federal decisions, these laws likely will not survive on appeal," Conway told reporters in a brief statement, after which he took no questions. "We cannot waste the resources of the office of the attorney general pursuing a case we are unlikely to win."

Conway began to cry as he continued: "For those who disagree, I can only say that I am doing what I think is right. In the final analysis, I had to make a decision that I could be proud of — for me now, and my daughters' judgment in the future."

Hours after his news conference, Conway told WHAS radio host Terry Meiners in Louisville that his wife helped him realize his heart was not in defending a ban on people's marriages.

"Now that Colorado has legalized marijuana sales, how long will it be before Judge Heyburn legalizes marijuana in Kentucky, too, since it's legal in another state and we have to respect their laws? And of course, now we know that Jack Conway would not oppose it," said Paul Chitwood, executive director of the Kentucky Baptist Convention.

However, one of Conway's possible rivals in next year's Democratic primary for governor praised him.

"I think it was evident from Jack's press conference that this was a very difficult, sort of tortured decision for him," said state Auditor Adam Edelen.

"But he came to the right conclusion, and I'm proud of him," Edelen said. "I said from the get-go that I thought the potential for winning on appeal was extraordinarily low, and that in this environment, I just don't think we ought to be paying lawyers to pursue what I think is unlikely to be the outcome that an appeal would be seeking."

Beshear's appeal before the 6th Circuit could take a year to 18 months, said Dan Canon, a lawyer for the plaintiffs in the case styled as Bourke vs. Beshear. The plaintiffs are four same-sex couples legally married elsewhere but living in Kentucky. They sued Beshear last year to win recognition of their marriages.

"We're extremely disappointed," Canon said. "This is essentially a decision to waste taxpayer money defending statutes that are morally reprehensible and constitutionally doomed to fail. Every court to decide this case so far, reviewing state laws that ban recognition of same-sex marriage, has found them to be unconstitutional."

Simultaneously, Heyburn is considering a related argument from new plaintiffs who are suing for the right to be issued same-sex marriage certificates inside Kentucky, in a case styled Love vs. Beshear. Heyburn's decision in that case is expected by this summer.

The state's private lawyers, who could be hired as early as Friday, will represent the state before Heyburn in Love vs. Beshear as well as in the appeal, said Kerri Richardson, spokeswoman for the governor's office.

By appealing, Kentucky is stepping to the end of a long line.

The U.S. Supreme Court last June all but invited challenges to same-sex marriage bans with a pair of decisions. The first struck down as unconstitutional a portion of the federal Defense of Marriage Act, which had barred federal benefits for same-sex spouses even in the 17 states where same-sex marriage is legal. The second upheld a lower court's ruling against California's voter referendum defining marriage as between a man and a woman.

In the California case, the Supreme Court said it ruled only on "standing," whether the private parties appealing the lower court ruling were legally entitled to do so after state officials refused to defend the law. The justices avoided a broader conclusion as to whether same-sex marriage is a constitutional "equal protection" that all states must respect.

But that may change soon. Since December, federal district judges in Ohio, Utah, Oklahoma, Virginia, Kentucky and Texas have cited the Supreme Court's rulings and thrown out some or all of those states' restrictions on same-sex marriage. Implementation of those rulings has been delayed until any appeal is resolved.